Canada's anti-terror law upheld as top court dismisses three appeals

Canada’s anti-terrorism laws withstood an important legal challenge Friday when the Supreme Court dismissed the appeals of three Ontario men who had argued the provisions should be struck down.

The high court justices unanimously rejected claims the 10-year-old terrorism sections of the Criminal Code had defined terrorist activity so broadly they threatened free expression and were therefore unconstitutional.

In related decisions, the court gave its stamp of approval to a wide definition of terrorism that recognizes terrorist activity goes well beyond planting bombs and includes anything intended to “enhance” a terrorist group.

While critics had argued even a doctor who knowingly treated a terrorist might be convicted, the court said the law applied only to conduct a reasonable person would consider capable of helping terrorists.

“For example, the conduct of a restaurant owner who cooks a single meal for a known terrorist is not of a nature to materially enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity,” the ruling said. “By contrast, giving flight lessons to a known terrorist is clearly conduct of a nature to materially enhance the abilities of a terrorist group.”

The three who brought the challenge are accused of more than cooking.

Momin Khawaja is an Ottawa resident who became infatuated with violent jihad. He trained at a small-arms camp in Pakistan and designed detonators for a terrorist group plotting attacks in

Britain. Friday’s ruling means the life sentence handed him by the Ontario Court of

Appeal will stand.

The two others are wanted in the United States for allegedly providing assistance to the Tamil Tigers. Piratheepan Nadarajah faces charges of attempting to buy $1-million of surface-to-air missiles and AK-47s for the Sri Lankan rebels.

Suresh Sriskandarajah, currently a University of Ottawa law student, was indicted in New York in 2006 for allegedly helping the Tamil Tigers acquire communications equipment, and submarine and warship design software. He is also accused of laundering money for the rebels and counseling others on how to smuggle materials to Sri Lanka.

The Ontario courts have approved the extradition of Mr. Sriskandarajah and Mr. Nadarajah. Their lawyers argued the evidence was weak and they should not be sent to the U.S. because their alleged crimes were not committed there. But the court said the extradition orders were sound.

“We are profoundly disappointed in the decision,” Mr. Sriskandarajah’s lawyers, John Norris and Brydie Bethell, said in an emailed statement.

“Canada appears to be content to outsource criminal prosecutions, even for conduct that has occurred entirely here, and, unfortunately, our courts are unwilling to prevent this from happening. If Suresh is to be prosecuted anywhere, it should have been in Canada.”

Rob Nicholson, the Justice Minister, said he was pleased the court had agreed Khawaja should be imprisoned for life.

“By upholding this sentence, the court sent a strong message that terrorism will not be treated leniently in Canada,” he said.

“I am also pleased that the court has recognized that the principles of procedural fairness were appropriately respected in the extradition cases of Messrs Sriskandarajah and Nadarajah and that their surrender for extradition was justified.”

At hearings in June, defence lawyers had disputed Canada’s definition of terrorism, arguing it was so open-ended it had a chilling effect on freedom of expression. But the court ruled the law was not broader than necessary and its impact was not disproportionate.

The justices said there was no evidence of a chill and the law applied only to activities related to terrorist violence. The anti-terrorism law is “respectful of diversity” because it allows for non-violent expression of political, ideological and religious views, they wrote.

“The purpose of the law does not infringe freedom of expression. While the activities targeted by the terrorism section of the Criminal Code are in a sense expressive activities, most of the conduct caught by the provisions concerns acts or threats of violence. Threats of violence, like acts of violence, are excluded from the scope” of the Charter of Rights guarantee of free expression.

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